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Calcutta High Court · body

1984 DIGILAW 53 (CAL)

Corporation of Calcutta v. State

1984-02-24

P.C.Borooah, Sukumar Chakravarty

body1984
Judgment 1. IN this revisional matter, the order dated 27. 7. 83 of the learned Senior municipal Magistrate and the Metropolitan Magistrate, Calcutta, in the Case No. 33d/81 has been challenged by the corporation of Calcutta. By the said order, the learned Senior Municipal Magistrate and the Metropolitan Magistrate gave direction on the complainant or his lawyer to file duly executed Vokalatnama. 2. THE Corporation of Calcutta through its food Inspector filed the complaint, in the aforesaid case under section 16 (1) (a) (i) and 12 of the Prevention of food Adulteration Act, 1954 with the consent of-the Health Officer of the Corporation, against Shib Nath Pal of Messrs. Joy Gourango Stores situated at 17/-23, Orphanganj Market. Mr. K. K. Banerjee, advocate, who was appointed as the Municipal Prosecutor by the corporation was prosecuting the case without filing any Vokalatnama. The accused raised the objection and filed a position before the Court of the learned senior Municipal Magistrate and Metropolitan Magistrate praying for giving direction upon the complainant to file the duly executed Vokalatnama. The leaned Court gave such direction by the [impugned order as mentioned above. This is how the matter has come up before us on revision for setting aside the said order. Mr. Balai Chandra Roy on behalf of the Corporation of Calcutta has made his submission in support of the revisional application and has drawn our attention to the provisions of section 579 of the Calcutta Municipal Act, 1951 to show that the Municipal Magistrate functioning within the Presidency Town of calcutta (now Metropolitan area of Calcutta)is the Presidency Magistrate (now metropolitan Magistrate) and he has his jurisdiction over the whole of Calcutta as defined in the Calcutta Municipal Act, 1951. The fact that the Senior Municipal Magistrate is also the Metropolitan Magistrate in this case is evident from the cause title of the impugned order dated 27-7-83 wherein the Senior municipal Magistrate has also been described as the Metropolitan Magistrate. 3. IT appears from the impugned order that the learned Senior Municipal magistrate and Metropolitan Magistrate, placing reliance on Rule 1 of Criminal rules and Orders (Volume I) has given the direction to file the Vakalatnama by his aforesaid order. Rule 1 of the Criminal rules and Orders deals with Vakalatnama and Mukhtarnama. For better appreciation, Rule 1 of the Criminal rules and Orders is quoted below :- "rule 1. Rule 1 of the Criminal rules and Orders deals with Vakalatnama and Mukhtarnama. For better appreciation, Rule 1 of the Criminal rules and Orders is quoted below :- "rule 1. All Pleaders as defined in section 4 (r) of the Code of criminal Procedure (except Barristers instructed by Pleaders), appearing on behalf of either the prosecution or the defence in all classes of cases, including Appeals and Revisional or Miscellaneous Applications, in all Criminal Courts, outside the Pesidency area shall, file vakalatnama or Mukhtarnama, as the case may be provided that these, shall not be necessary in the case of :- (a) Public Prosecutors appearing on behalf of the Government; (b) Pleaders appointed by the court in any case to defend persons who are "too poor to engage counsel for themselves; (c)Pleaders appearing as amicus curiae". 4. EXCEPTING the Public Prosecutors and Pleaders as mentioned in clause (a), (b) and (c) of Rule 1 of the Criminal rules and Orders, all Pleaders are required to file vakalatnama in all criminal Courts outside the Presidency area. It therefore appears that all Pleaders appearing on behalf of either the prosecution or the defence in all classes of cases are not required to file Vakalatnama in the criminal Courts within the Presidency area (now the Metropolitan area. The Courts of the Municipal magistrate and Metropolitan Magistrate under the Calcutta Municipal Act are within the Presidency area (now Metropolitan area. Accordingly the lawyer appearing in any case in the Court of municipal Magistrate situated within the Metropolitan area is not required to file any Vakalatnama. It appears that the Senior Municipal Magistrate and Metropolitan Magistrate has misconceived the Rule 1 of the Criminal Rules and orders and has fallen into error by observing that the rule provides that the lawyers conducting the cases arising within the jurisdiction of the Presidency area of Calcutta in Criminal Courts of Presidency area need not file Vakalatnama. The import of the underlined words in Rule 1 of the criminal Rules and Orders when they are not so mentioned in the said rule, appears to have misled the learned Senior Municipal Magistrate and Metropolitan magistrate to give the direction on the complaint to file the Vakalatnama by his order dated 27-7-83, perhaps in view of the fact that the case arose not within the jurisdiction of the Metropolitan area. The order of the learned Senior Municipal Magistrate and metropolitan Magistrate being not warranted by law is therefore erroneous and unjustified and is liable to be set aside. 5. WE, therefore, allow the revisional application and set aside the order dated 27-7-83 of the learned Senior Municipal Magistrate and Metropolitan Magistrate. The hearing of the case he expedited.